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Court of AppealDismissedNot stated in judgment· [2024] KECA 1720 (KLR)

Nimrod Irungu Gatambia v Duncan Kamau King’ora & 3 others

Court of Appeal of Kenya
28 November 2024
703 words in judgment
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The bottom line

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The Court of Appeal dismissed a bid to substitute a deceased party because the applicant relied on the wrong rule and failed to prove the substitute was the deceased's legal representative.

What this practically means

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Executive summary

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By a notice of motion dated 14th December 2023, the applicant Nimrod Irungu Gatambia sought, under rule 97 of the Court of Appeal Rules 2010, the substitution of Stephen Irungu for the deceased 1st respondent, Duncan Kamau, contending that the proposed substitute was the personal representative and administrator of the deceased's estate with locus standi to take his place in the appeal. The intended substitute, though initially represented by counsel, filed an affidavit opposing the application, annexing a limited grant of letters of administration ad litem in the applicant's own name and denying that the grant produced by the applicant, which bore his name, existed in the Succession Cause file; he suggested it may have been obtained without his knowledge or consent. The Court (Lesiit, JA) held that rule 97, dealing with the rights of a respondent when an appeal is withdrawn, was inapplicable; the governing provision was rule 99, which provides that an appeal shall not abate on the death of a party and empowers the Court to cause the legal representative of the deceased to be joined in place of the deceased. The Court set out the threshold requirement: the applicant must establish that the intended substitute is a personal representative of the deceased by grant of letters of administration, or a close family member such as a spouse or child. Faced with rival grants and an unrebutted denial of the validity of the grant on which the applicant relied, the Court found the burden of proof undischarged. The application was dismissed, with no order as to costs pronounced.

Key legal issues

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01

Applicable rule for substitution upon death of a party to an appeal

Holding

Rule 97 of the Court of Appeal Rules 2010, which concerns the rights of a respondent when an appeal is withdrawn, does not govern substitution of a deceased party; the applicable provision is rule 99.

Reasoning

The court examined the rule invoked by the applicant and found it addressed an entirely different situation - withdrawal of an appeal - not death of a party. Rule 99 expressly provides that an appeal shall not abate on death and empowers the Court, on application by an interested person, to cause the legal representative of the deceased to be made a party in place of the deceased. The misidentification of the rule was material because the substantive requirements of rule 99 then framed the assessment.

p. 2
02

Whether the applicant established the intended substitute's standing as personal representative

Holding

The applicant failed to discharge the burden of proof. Both parties produced rival grants of letters of administration ad litem, and the intended substitute denied the validity of the grant issued in his name, asserting it did not exist in the Succession Cause file. The applicant did not respond to that denial.

Reasoning

Where rival grants are placed before the Court and the person named in one grant disavows it as non-existent and possibly procured without knowledge or consent, the applicant relying on that grant must rebut the denial. The applicant filed no response to the affidavit, raised no objection to its filing or to the impugned evidence, and thus left the foundational document for substitution unproved. Satisfaction of the locus standi requirement under rule 99 therefore failed.

p. 2

Legal principles established

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  • On the death of a party, an appeal does not abate and the correct procedural route is rule 99, under which the legal representative of the deceased is made a party in place of the deceased upon application by an interested person; rule 97 does not apply.
  • An applicant seeking substitution of a deceased party must establish that the intended substitute is a personal representative of the deceased by grant of letters of administration, or a close family member such as a spouse or child, and bears the burden of proving this.

Court orders

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  1. 1.The application dated 14th December 2023 seeking substitution of Stephen Irungu for the deceased 1st respondent was declined and dismissed
Jurisdiction invoked
Rule 99 of the Court of Appeal Rules, 2010 (Death of party to appeal) - the applicant having erroneously invoked rule 97

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nimrod Irungu Gatambia v Duncan Kamau King’ora & 3 others", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1720/eng@2024-11-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.